730 F.

2d 736
84-1 USTC P 9414, 15 Fed. R. Evid. Serv. 502

UNITED STATES of America, Plaintiff-Appellee,

v.
Jerome H. VANCE, Defendant-Appellant.
No. 83-8525
Non-Argument Calendar.

United States Court of Appeals,

Eleventh Circuit.
April 23, 1984.
Rehearing and Rehearing En Banc Denied June 22, 1984

R.C. Cougill (Court Appointed) Lilburn, Ga., for defendant-appellant.

Stephen S. Cowen, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of
Georgia.
Before HILL, JOHNSON and HENDERSON, Circuit Judges.
PER CURIAM:

Jerome H. Vance appeals to this court from his conviction in the district court
on three counts of willful failure to file tax returns for the tax years 1977, 1978,
and 1979. See 26 U.S.C. Sec. 7203. The evidence in the district court showed
that, for the tax years 1973-1975, Vance filed "normal" tax returns containing
financial information from which taxes could be computed. In 1976, he filed a
"gold/silver" protest return, claiming that his income was not taxable because
the dollars had not been paid in gold or silver. (Vance was not charged in
connection with this return.) In 1977, 1978, and 1979, Vance filed the returns at
issue in this case. On the 1977 return, Vance wrote "object; self-incrimination"
on the lines for wages, business income, capital gains and distributions, total
income, adjusted gross income, tax table income and tax computations. He
wrote "none" or "0.00" for the remaining items. Vance listed his social security
number and indicated that his occupation was "businessman." Vance completed

the 1978 and 1979 returns in the same manner as he completed the 1977 return,
except that he wrote "object: self-incrimination" on the lines calling for social
security number and occupation. On appeal, Vance contends that this court
should reverse his conviction because the district court refused to conduct a
pretrial in camera hearing on Vance's claim of fifth amendment privilege,
because the district court improperly admitted certain evidence, because the
district court improperly instructed the jury, and because he was the subject of
selective or vindictive prosecution. Finding no error, we affirm.
2

* Vance first contends that the district court erred in refusing to hold an in
camera hearing to determine the validity of Vance's claim of privilege under the
fifth amendment. The district court properly refused to grant such a hearing;
under the facts in this case, Vance was not entitled to any hearing at all, and he
was certainly not entitled to an in camera hearing. See United States v. Radue,
707 F.2d 493, 497 (11th Cir.1983); see also United States v. Pilcher, 672 F.2d
875 (11th Cir.1982); United States v. Booher, 641 F.2d 218 (5th Cir. Unit B
1981). As we stated in Radue:

Appellant also attacks the magistrate's denial of a hearing to determine the

propriety of his assertion of the fifth amendment privilege against selfincrimination. This issue arose as a result of appellant's submitting tax returns
for the years in question in which he inserted, on every available blank space,
that he refused to submit any requested information on the basis of the fourth
and fifth amendments. Such a blanket assertion of the privilege against selfincrimination is not justifiable under the fifth amendment.

707 F.2d at 497. The return in this case clearly falls under the rule stated in
Radue. Although the source of Vance's income might arguably be privileged,
the amount must be reported. See Pilcher, 672 F.2d at 877. Vance's only
defense to the failure to file a return charge was that he had acted pursuant to a
good faith claim of privilege, Booher, 641 F.2d at 219-20; however, this was an
issue for consideration by the jury.

II
5

Vance next contends that the district judge improperly admitted evidence
showing that Vance earned a substantial amount of income for the years in
question and thus was required to file tax returns. Vance contends that this
evidence was inadmissible under Rule 404 of the Federal Rules of Evidence.
The evidence was clearly admissible in this case. First, the evidence was
relevant to show that Vance had a duty to file tax returns for the years in
question; thus, the evidence cannot be characterized as evidence of bad

character or bad acts to prove that Vance acted "in conformity therewith on a
particular occasion." Fed.R.Evid. 404. In addition, the evidence was clearly
admissible to show that Vance, because he had incurred a substantial tax
liability, had a motive to file the inadequate returns and did not act in good faith
under Booher, 641 F.2d at 220. See Fed.R.Evid. 404(b).
III
6

Vance next challenges the trial court's instructions to the jury. He challenges
the following instruction:

Ladies and gentlemen, you are instructed that a document; that is, a 1040 form
which does not contain sufficient financial information to enable the Internal
Revenue Service to determine that individual's tax liability is not a tax return
within the meaning of the law.

The bare act of submitting a form 1040 lacking such information does not
constitute the filing of a tax return for purposes of the statute that is involved
here.

Vance contends that this instruction was improper because, even though it is
clearly correct under the current law, see, e.g., Radue; Booher, the case law on
this issue was unclear until "after the filings of the appellant in the instant
appeal." Thus, according to Vance, he did not have reasonable notice of the
filing requirements. This contention is utterly without merit. As early as 1927,
the Supreme Court stated: "It would be an extreme if not an extravagant
application of the fifth amendment to say that it authorized a man to refuse to
state the amount of his income because it had been made in crime." United
States v. Sullivan, 274 U.S. 259, 263-64, 47 S.Ct. 607, 71 L.Ed. 1037 (1927).
The district judge's instruction was entirely correct and properly stated the law.

IV
10

As his final contention, Vance argues that he was the target of vindictive and
selective prosecution. This issue is totally devoid of merit. See United States v.
Johnson, 577 F.2d 1304, 1309 (5th Cir.1978) ("[t]he fact that tax protesters are
vigorously prosecuted for violation of the tax laws demonstrates nothing more
than a legitimate interest in punishing flagrant violaters and deterring violations
by others"). In any event, this issue is not properly before this court because
Vance has raised it for the first time on appeal. Ross v. Hopper, 716 F.2d 1528,
1538 (11th Cir.1983).

The judgment of the district court is

11

AFFIRMED.